Opinion
SA-24-CV-00530-FB
07-23-2024
MICHAEL LEON FORD, Plaintiff, v. FNG USA LLC, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Fred Biery:
This Report and Recommendation concerns the above-styled cause of action. This case was referred to the undersigned for a ruling on Plaintiff's motion to proceed in forma pauperis (“IFP”) and a review of the pleadings pursuant to 28 U.S.C. § 1915(e). On June 11, 2024, the Court granted Plaintiff's motion to proceed IFP, but the Court withheld service of Plaintiff's Complaint pending review of a More Definite Statement regarding the claims Plaintiff is attempting to bring through this suit. Plaintiff has filed the ordered More Definite Statement, and the Court has undertaken a review of Plaintiff's pleadings. For the reasons that follow, the undersigned recommends that Plaintiff's case be dismissed pursuant to Section 1915(e).
I. Background and Analysis
Pursuant to 28 U.S.C. § 1915(e), the Court is empowered to screen any civil complaint filed by a party proceeding IFP to determine whether the claims presented are (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). Plaintiff's proposed Complaint asserts claims of employment discrimination (based on his race, color, and national origin) against his former employer, FNG USA, LLC, under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Equal Pay Act. Plaintiff alleges he is African American and worked for Defendant as a truck driver. Plaintiff has not stated a plausible claim under any of the federal statutes referenced in his Complaint.
28 U.S.C. § 1915(e) does not make frivolousness review mandatory before the docketing of a Complaint filed by a non-prisoner Plaintiff proceeding IFP. However, the San Antonio Division has a standing order requiring all Magistrate Judges to undertake such review in conjunction with disposing of a motion to proceed IFP.
First, to establish a claim under the Equal Pay Act, a plaintiff must show a prima facie case of wage discrimination, i.e., that “an employer pays different wages to employee of opposite sexes” for equal work under similar working conditions. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). This requires four elements: (1) the defendant is an employer that is subject to the Equal Pay Act; (2) the plaintiff worked “in a position requiring equal skill, effort, and responsibility under similar working conditions”; and (3) that the defendant paid the plaintiff “less than the employee of the opposite sex providing the basis for the comparison.” Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993). Plaintiff's Complaint does not assert any factual allegations regarding receiving unequal pay or wage discrimination. The undersigned specifically ordered Plaintiff to describe in his More Definite Statement why he believed he suffered wage discrimination, i.e., whether he received unequal pay for the same work as a female employee who performed his same job. Plaintiff's More Definite Statement states his rate of pay but does not assert that any female employees of FNG USA received greater pay for the same job. Plaintiff simply reiterates that he was passed over for work. Without allegations related to a wage disparity among employees of opposite sexes, Plaintiff has no claim under the Equal Pay Act.
Plaintiff's More Definite Statement also does not provide sufficient allegations to support a claim under Title VII. In order to establish a Title VII race discrimination claim, Plaintiff must allege the following: (1) is a member of a protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse employment action by the employer; and (4) was replaced by someone outside his protected group or was treated less favorably than other similarly situated employees outside the protected group. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007), abrogated on other grounds by Hamilton v. Dallas Cnty., 79 F.4th 494 (5th Cir. 2023). According to Plaintiff's EEOC Charge and the narrative description of his claims, he believes Defendant discriminated against him because of his race-African American-because he was not permitted to sleep “on the property” when Mexicans and Cubans were permitted to do so. It is unclear from Plaintiff's proposed Complaint and EEOC Charge where he was attempting to sleep; who prevented him from sleeping there; whether this person was a representative of his employer or a third party; and when this allegedly discriminatory treatment occurred. The undersigned ordered Plaintiff to provide more details about this incident, as well as describe any other incident of discriminatory treatment. Plaintiff's More Definite Statement explains that there was an employee named Carlos, who was Cuban, who was permitted to sleep in his truck on “the property” and that other Mexican “tire guys” were also allowed to sleep there. (More Definite Statement [#6], at 3.) These extra details still do not provide enough context to evaluate Plaintiff's claims. Plaintiff also generally alleges that Defendant gave work to Mexicans and Cubans but not Black truck drivers. (Id. at 5.)
Under Title VII, an adverse employment action is any employment action affecting a term, condition, or privilege of employment. Hamilton, 79 F.4th at 501. Although allowing some employees to sleep at work between shifts and not others might be an adverse employment action, Plaintiff has not sufficiently pleaded his allegations regarding these incidents. The undersigned specifically ordered Plaintiff to explain where he was trying to sleep, who refused to allow him to sleep there, whether this person was a representative of his employer, and when this incident(s) occurred. Plaintiff's More Definite Statement did not provide these details. The Court is therefore unable to evaluate whether Plaintiff has pleaded an adverse employment action and a plausible claim under Title VII. Furthermore, Plaintiff has not provided the Court with an approximate date of when these alleged events occurred. His More Definite Statement simply says these events occurred at “different times” during his employment. The only date referenced in the More Definite Statement is related to allegations regarding drug testing on February 22, 2023, to support Plaintiff's claim of retaliation. The Court is unable to evaluate whether Plaintiff's Title VII claims were timely filed without the requested information as to when the discrimination occurred.
Finally, Plaintiff's More Definite Statement also does not provide sufficient allegations to support a claim under the Age Discrimination in Employment Act (“ADEA”). The ADEA prohibits discharging an employee based on the employee's age. 29 U.S.C. § 623(a)(1). To plead a claim under the ADEA, a plaintiff must allege the following facts: (1) he is within the protected class; (2) he is qualified for the position; (3) he suffered an adverse employment decision; and (4) he was replaced with someone younger or treated less favorably than similarly situated younger employees. Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir.2003) (citations omitted). There are no factual allegations regarding age discrimination in Plaintiff's Complaint or More Definite Statement. Accordingly, Plaintiff has failed to plead a claim under the ADEA.
II. Conclusion and Recommendation
Having considered Plaintiff's Complaint under the standards set forth in 28 U.S.C. §1915(e), the undersigned recommends that Plaintiff's claims be DISMISSED for failure to state a claim pursuant to Section 1915(e) and/or for failure to follow a court order pursuant to Rule 41(b).
III. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the Clerk of Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).